Last updated on January 15th, 2021 at 08:01 pm
What is intestacy?
What are the rules of intestacy?
In England and Wales, there is a statutory set of rules, that were updated in October 2014 and that are enforced if you die intestate. (The rules are different in Scotland). Your estate would be divided according to this fixed set of rules, irrespective of what your intentions actually were, and that means your estate might not be divided in the way you expect – or want!
Who would receive an inheritance under the rules of intestacy?
The rules will enforce the division of your estate in a fixed order as below:
- Married couples and civil partners. If you die intestate, your spouse or civil partner will only receive a certain amount of your estate (currently the first £270,000, plus half of everything above that amount). They may also inherit if you have informally separated, but not if you have divorced or legally ended your civil partnership.
If you’re married or in a civil partnership and you die intestate, your spouse or civil partner will not automatically receive all of your estate. They will only receive your personal possessions, along with:
- all of the rest of your estate if you have no children, grandchildren or great grandchildren.
- the first £270,000 of your estate, if you have children, grandchildren or great grandchildren, plus half of the rest of the estate. The other half of the rest of the estate will go to your children.
- If you have joint bank accounts, the account passes automatically by survivorship to the other joint account holder.
- If you own land or property with another person (you’re the co-owner), the way it is dealt with for inheritance depends on how you own it:
- If you own the land or property as beneficial joint tenants when you die, your co-owner will automatically inherit your share.
- If you own the property as tenants in common, your co-owner will not automatically inherit your share of the property but it will be dealt with by your will or by the rules of intestacy if you don’t have a will.
The property and money that your partner has automatically inherited according to the joint ownership rules will not be part of the estate that is being shared according to the
- Children. If you die intestate and are survived by children, birth or adopted, the rules of intestacy will divide the estate in one of two ways:
- If you have a surviving spouse or civil partner, part of it will pass to them (the first £270k plus personal possessions) and the rest will be distributed amongst your children. If your estate is worth less than £270,000 your spouse or civil partner will inherit the whole of your estate and your children will receive nothing.
- If you have no surviving spouse or civil partner your child or children will receive the whole of your estate.
In both of the above cases the part of the estate apportioned to your children will be shared equally amongst them.
Do remember that if you are separated but are still married or in a civil partnership, your spouse or civil partner may inherit, even though you no longer live together. This means that your children may not inherit any of your estate if you die intestate.
Children from another relationship and adopted children
When an estate is being divided under the rules of intestacy, all of your children are treated equally. Children from all relationships and legally adopted children will receive equal shares of your estate.
Step-children will receive nothing if there is no will providing for them, regardless of your relationship or how long you cared for them, unless you have legally adopted them.
When will my children receive their inheritance?
Under the rules of intestacy, your children will only receive their inheritance when they either:
- reach the age of 18; or
- marry or enter into a civil partnership before they become 18.
- Grandchildren/great-grandchildren. If you die intestate, your grandchildren and great grandchildren will not inherit any of your estate unless one of the following criteria is met:
- The child’s parent or grandparent died before you.
- The child’s parent is alive when you die, but dies before reaching the age of 18 and is not married or in a civil partnership.If either of the cases above, the grandchildren and great grandchildren will inherit an equal share of the amount their parent/grandparent would have received.
In either of the cases above, the grandchildren and great grandchildren will inherit an equal share of the amount their parent/grandparent would have received.
- Other relatives. Under the rules of intestacy relatives such as parents, siblings, uncles and aunties might inherit some of your estate where certain circumstances are met.
If you die intestate leaving no surviving spouse or civil partner, your estate will be distributed in a strict order, which is:
- If you have children, they will inherit all of your estate in equal shares. If a child has already died, his or her children will inherit their share of the estate.
- If there are no children, your surviving parents will inherit your estate in equal shares.
- If there are none of the above, your brothers and sisters will inherit in equal shares. If a brother or sister has already died, their children (your nieces and nephews) will inherit their share of the estate.
- If there are none of the above, your half-brothers and half-sisters will inherit your estate. If a half-brother or half-sister has died, their children will inherit their share of the estate.
- If there are none of the above, your grandparents will inherit your estate in equal shares.
- If there are none of the above, your aunties and uncles will inherit your estate. If an auntie or uncle has already died, their children (your cousins) will receive their share of the estate.
- If there are none of the above, your half-aunties and half-uncles will inherit your estate. If a half-auntie or half-uncle has already died, their children will inherit their share of the estate.
- If you have no surviving blood relatives, your estate is passed to the Crown.
Put simply, without a legal will in place, your estate may not be distributed in a way would want when you die, and those people you want to look after might be left without any inheritance.
What does dying intestate actually mean for you?
Let’s explore some examples that could relate to different situations:
|Your situation (if you have no will)||What will happen to your estate|
|You’re married or in a civil partnership with children (birth or adopted)||
Your surviving spouse or civil partner will inherit the first £270,000 of the estate, all your chattels (personal possessions), and then be fully entitled (i.e., outright) to half of the remainder above that amount. Your children will receive half of anything above £270,000 – and that will be kept in trust until they can access it at 18 years old. If your estate is worth less than £270,000, your spouse or civil partner will inherit the whole of your estate and your children will receive nothing.
This applies even if you have informally separated from a spouse or civil partner and not yet legally divorced or ended the partnership.
|You’re married or in a civil partnership with no children||Your spouse or civil partner will inherit your whole estate, including your chattels, even if you have informally separated. There’s nothing for your parents or extended family.|
|You have children but you are unmarried, divorced or widowed||Your children are first in line for your inheritance, and, if you have a common-law partner, they’ll get nothing.|
|You have grandchildren, but no surviving children nor spouse/civil partner||our grandchildren (and their descendants) are next in the pecking order from your children. If your child (their parent) has already died or dies before your grandkids turn 18, then the grandchildren will inherit their share of your estate.|
|You’re unmarried with no surviving children, grandchildren of great-grandchildren||Whether or not you are widowed, co-habiting or you are single, you’re treated legally as if you were single. That means any common-law partner receives nothing after your death, with the inheritance being distributed to the closest blood relatives in the order we discussed above. So if you die intestate and unmarried but with surviving parents, the whole of your estate would go to them. If there were no surviving parents, it would go to your siblings or their children.|
|You have children from multiple relationships, adopted children or step-children||All of your biological and legally adopted children will be treated equally, meaning they will get an equal share of your estate. There’s no provision for step-children in the new intestacy rules – no matter how long you’ve cared for them. Only biological and legally-adopted children have a right to inherit. So if you want to provide for step-children too, you need to make a will! If you had children but they were adopted out of your family before your death, they don’t have a right to inherit under the intestacy rules. If you currently have children but would like them to be legally adopted by a trusted guardian or family member after your death, the new intestacy rules mean that they are still able to inherit from your estate.|
I’m single with no children, why does making a will matter?
If you’re happy with the way the intestacy rules would divide up your estate, then that’s fine – maybe it doesn’t matter to you. But these intestacy laws don’t allow for any other bequests to friends, in-law relatives, or charities. Even if you’re happy to distribute your property, money and assets in the order of blood relatives that the rules dictate, the rules don’t allow you to leave a specific item to a particular person or organisation – so you couldn’t leave a personal gift or trust fund for a special niece or nephew if you had other surviving relatives higher up the pecking order.
Think about your pets too! If your surviving family couldn’t accommodate the burden of an animal who outlives you, it’s wise to make arrangements for this in your will, so your pet will be properly looked after by someone who’s agreed to a new companion!
Also, people change and lives change. What you thought would be a fair distribution five years ago may no longer be the case. Whether or not you’ve made a will, think about reviewing your decision every five years and take stock of the changes in your lifestyle and relationships. Make a will if you haven’t already, or change the will you have if your circumstances have changed.
Who would not receive an inheritance?
You may wish to leave some of your estate to people, other than your direct family, who you care about. For example:
- Partners (unmarried)
- Partners (not in civil partnership)
- Relations via marriage
You may even class these people as your family, but, if you die intestate, they will not inherit any of your estate, no matter what your intentions were. To find out more about how to prevent this you could visit our page on making a valid will.
In what situation will my estate go to the government?
If you have no will and absolutely no surviving blood family or their descendants, your entire estate will go to the Crown. Imagine working for more than 40 years and then giving it all up to the government!
However, that’s not quite the end of the story. You might have seen the BBC programme Heir Hunters. When your estate passes to the Crown, it becomes ownerless goods or ‘bona vacantia’. A list of unclaimed estates is published weekly and kin can identify their own entitlement from it. Millions of pounds are currently lying unclaimed by potential heirs in this way. The list is in the public domain and can be searched online, with dates of death going back as far as 1961. It’s up to the potential inheritors to prove their identity, relation to the deceased and claim to the estate, but there are several companies also working to identify heirs and charging a commission on the estate as a result of finding someone a fortune. It’s definitely worth checking your family tree yourself and periodically searching the unclaimed estates list for long-lost relatives!
Can the intestacy rules be challenged?
This is a very complex area and there is no simple answer – but if you die intestate, generally the rules dictate how your estate is distributed. However, people who aren’t entitled to inherit under the intestacy rules (for example, financial dependants or co-habiting partners) can still make a claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975.
There’s also a situation where your beneficiaries can apply for a deed of variation or a deed of family arrangement within two years of your death – this is an agreement between all the people who would have inherited under the intestacy rules to share or distribute the assets in a different way, perhaps to include people who wouldn’t have inherited under the intestacy rules, or to change the proportions.
A more likely scenario concerns disputing wills and their validity. If someone’s been left out of a will and feels they should have been left ‘reasonable financial provision’, they can make a claim under the Inheritance Act. There are only certain categories of people entitled to make a claim, and these include: the husband, wife or civil partner of the person who has died, a partner who lived with the deceased for at least two years before the death or a child of the deceased. A person must make that claim within 6 months of the date that probate is granted. Other grounds to contest a will relate to execution of the will (how it was signed and dated), or the deceased lacked capacity.
All of these are quite complex situations that would require legal advice.
What happens if a will is later found after the estate has been distributed according to the intestacy rules?
This is a complex matter, but in essence, if the estate of a person who has died intestate has already been distributed, the estate will have to be re-administered in accordance with the wishes within the will. This is likely to result in complications and disputes and proper legal advice will need to be sought.
What if a will is found to be invalid?
A will can be invalid for myriad reasons. For a will to be valid, it has to be:
- made by a person who is 18 years old or over
- made voluntarily and without pressure from any other person
- made by a person who is of sound mind – fully aware of the nature of the document being written or signed and aware of the property and the identity of the people who may inherit
- in writing
- signed by the person making the will in the presence of two witnesses
- signed by the two witnesses, in the presence of the person making the will, after that person has signed it. A witness, or the married partner of a witness, can’t benefit from a will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the will is still valid but the beneficiary can’t inherit under the will.
All of these conditions must be met for the will to be valid. When a will is found that appears to meet these, it’s presumed to be valid unless it can be proven otherwise. The onus to prove its invalidity would be on the person disputing the will, not on the court in which it would be challenged.
When a will is found to be invalid, it means, essentially, that there might as well be no will, so the instructions contained within it are voided. That means that the estate is then treated as if the person died intestate, so the assets will be distributed as per the intestacy rules.
How does dying intestate affect any property owned?
If the property is owned solely by person who died, then it will be distributed according to the order of relatives above.
However, if the property is jointly owned with a spouse or partner, then there are different ways it may pass to different family members:
- If it’s owned as beneficial joint tenants:
Together, you’re treated as a single owner, with no specific shares in the property. You own the property jointly and your share of the property automatically passes to the other joint owner on your death. You can’t give away your share of the property in your will. If you die without a will, the property will simply pass to the other owner, regardless of your familial relationship with them. If the other owner then dies, the property will be left according to the will if there is one, or to the relatives according to the intestacy rules if there is no will.
- If it’s owned as tenants in common
Each person owns a separate half share of the property. Each of you can leave your half of the property to anybody in your will. If you die without a will, your share of the property will pass to the order of relatives as dictated by the rules of intestacy. Importantly, if you own property with a partner that you are not married to, your share will not pass to them if you die without a will.
If both joint tenants die without wills, then each of their families will inherit each tenant’s respective shares according to the order set out in the rules of intestacy.
What happens if the person who died intestate still has outstanding debts or liabilities (like a mortgage) to settle?
These will be deducted from the estate first, and then whatever is left of the estate will then be shared amongst relatives in the order according to the intestacy rules.
What is partial intestacy?
This is when someone has accounted for only part of their estate in their will. For example, they may have made a will that dictated who their main house may be left to, but not mentioned their other assets, like money in bank accounts. In this case, the house may be left to the beneficiary according to the will, but any other assets not accounted for in the will should be distributed according to the rules of intestacy.
When someone dies without a will, what if they weren’t divorced but they were granted a judicial separation from their partner?
When a couple has obtained a decree of judicial separation, and one spouse dies without a will, then the surviving spouse does not benefit from the will. For all intents and purposes, a judicially separated spouse will be treated as if they had died on the date of the judicial separation, and the estate will then be distributed according to the rules of intestacy.
For the purposes of intestacy, a judicially separated couple is treated like they are divorced or widowed, whereas a conventionally separated couple are treated essentially as if they were still married.
How long does it take to administer the estate of someone who dies intestate?
It depends on the value, size and complexity of the estate, and how immediate the beneficiaries are. In cases where the beneficiaries are more distant relatives, such as the descendants of half-siblings or aunts/uncles and cousins, then it may be more time-consuming to trace them all and ensure that they receive their allocated share of the estate.
What if someone dies intestate and their children are still minors?
When a parent dies intestate and their children are under 18, the assets can be held in trust for them until they become fully entitled to them at age 18.
What are the fees and costs involved in intestacy?
Again, it depends very much on the size and complexity of the estate and the size of the deceased’s family. Of course, if the estate is very small or straightforward in nature then it’s entirely possible to administer the estate without solicitors.
If an heir or beneficiary is estranged when someone dies intestate, does it matter?
No – while this may seem unfair to many other relatives who may have had a more positive relationship with the person who died intestate, estrangement has no effect on whether a beneficiary inherits under the intestacy rules.
How can an estate be protected?
Ensuring that your estate will not be subject to the rules of intestacy is simple: just make sure you’ve got a legally binding will in place before you die. You can do this at any time in life; in fact the number of young people (especially those with children) preparing wills is on the increase.
If you think you’ve encountered any changes in your life that might affect your will, please contact our wills and probate experts now to make an appointment to discuss your needs.